“The general rule, which requires the plaintiff to bring before the court all the parties interested in the subject in question, admits of exceptions. The liberality of this court has long held, that there is of necessity an exception to the general rule, when a failure of justice would ensue from its enforcement.”
Those who are represented need not be individually named or identified. Nor need they be served. They are not parties to the proceedings: CPR rule 19.8(4)(b). Nevertheless, an injunction can be granted against the whole class of defendants, named and unnamed, and the unnamed defendants are bound in equity by any order made: Adair v The New River Co (1805) 11 Ves 429, 445; CPR rule 19.8(4)(a). 29. A representative action may in some circumstances be a suitable means of restraining wrongdoing by individuals who cannot be identified. It can therefore, in such circumstances, provide an alternative remedy to an injunction against “persons unknown”: see, for example, M Michaels (Furriers) Ltd v Askew (1983) 127 Sol Jo 597, concerned with picketing; EMI Records Ltd v Kudhail [1985] FSR 36, concerned with copyright infringement; and Heathrow Airport Ltd v Garman [2007] EWHC 1957 (QB), concerned with environmental protesters. 30. However, there are a number of principles which restrict the circumstances in which relief can be obtained by means of a representative action. In the first place, the claimant has to be able to identify at least one individual against whom a claim can be brought as a representative of all others likely to interfere with his or her rights. Secondly, the named defendant and those represented must have the same interest. In practice, compliance with that requirement has proved to be difficult where those sought to be represented are not a homogeneous group: see, for example, News Group Newspapers Ltd v Society of Graphical and Allied Trades ’82 (No 2) [1987] ICR 181, concerned with industrial action, and United Kingdom Nirex Ltd v Barton , The Times, 14 October 1986, concerned with protests. In addition, since those represented are not party to the proceedings, an injunction cannot be enforced against them without the permission of the court (CPR rule 19.8(4)(b)): something which, it has been held, cannot be granted before the individuals in question have been identified and have had an opportunity to make representations: see, for example, RWE Npower plc v Carrol [2007] EWHC 947 (QB).
(ii) Wardship proceedings
31. Another situation where orders have been made against non-parties is where the court has been exercising its wardship jurisdiction. In In re X (A Minor) (Wardship: Injunction) [1984] 1 WLR 1422 the court protected the welfare of a ward of court (the daughter of an individual who had been convicted of manslaughter as a child) by
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